905 F.

2d 510

UNITED STATES of America, Plaintiff, Appellee,

v.
Sergio M. CUEVAS-ESQUIVEL, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Alfredo HERRERA-VILLAREAL, Defendant, Appellant.
Nos. 89-1723, 89-1769.

United States Court of Appeals,

First Circuit.
Heard March 7, 1990.
Decided June 5, 1990.

Alejandro Lopez-Lorenzo, by appointment of the Court, was on brief for

defendant, appellant Sergio M. Cuevas-Esquivel.
Luis A. Medina-Torres, was on brief for defendant, appellant Alfredo
Herrera-Villareal.
Carlos A. Perez, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F.
Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for appellee.
Before BREYER, Chief Judge, and TORRUELLA and SELYA, Circuit
Judges.
TORRUELLA, Circuit Judge.

This case stems from a United States District Court for the District of Puerto
Rico jury verdict convicting Alfredo Herrera-Villareal and Sergio CuevasEsquivel of aiding and abetting in the possession with intent to distribute 1000
kilograms of marihuana on board a vessel subject to the jurisdiction of the
United States in violation of 46 U.S.C.App. Sec. 1903(a), (c), (f) and 18 U.S.C.
Sec. 2.

I. BACKGROUND

The evidence presented at trial established that on February 2, 1989, CuevasEsquivel was hired to bring a boat from Turbo to Barranquilla, Colombia. He
testified that he was paid 12,000 Colombian pesos for this job, or about $33.00.
Cuevas arrived at Turbo on February 3, at about 5:00 p.m. When Cuevas
boarded the PECHE, there were several people already on board, including
Herrera-Villareal. The boat immediately sailed for Barranquilla. Cuevas said
that his job aboard the PECHE was to bail water and to take turns at the watch.

The PECHE developed engine trouble, ran out of fuel and was cast adrift in the
Caribbean sea. On February 11, at about 2:15 a.m., the PECHE crew spotted
lights about 3 miles away, and immediately sent out an SOS. A series of radio
conversations between the USS MERRIMACK, passing as a cargo vessel, and
the PECHE ensued. When asked for its name, the PECHE responded, "PECHE,
PECHE, Barranquilla." After the initial contact between the USS
MERRIMACK and the PECHE, the MERRIMACK radioed to another Coast
Guard vessel, the USS JOHN HANCOCK, where the squadron commander of
both vessels was located. Because it was night, the PECHE could not be
visually located, and the commander decided to wait until morning to help
them.

Just before dawn, the JOHN HANCOCK launched a helicopter to assist the
USS MERRIMACK in locating the PECHE. When the vessel was located
several videotapes of the PECHE and the surrounding waters were taken.
Burlap bales were observed floating on the water near the PECHE. Officer
Campbell, who was on the helicopter, testified that, before he started taping, he
saw one bale being thrown from the PECHE. These tapes were shown to the
jury.

Soon thereafter two boats were launched, one from the JOHN HANCOCK and
another from the USS MERRIMACK. The master of the PECHE prevented the
MERRIMACK from boarding, to which the MERRIMACK party responded
that they would obtain "permission from his country to board him." The boat
from the JOHN HANCOCK arrived later, and boarded the PECHE against the
wishes of the crew, without a statement of no objection. The JOHN
HANCOCK had obtained permission from the Coast Guard Headquarters to
board the vessel, determine its nationality and, if it turned out to be stateless,
enforce United States law. After boarding, the JOHN HANCOCK determined
that the boat had no name, home port, registration numbers, markings or flag,
but did have an odor of marihuana. No claim of nationality was made. While
boarding the vessel, six to eight inches of oily water and several empty barrels
were observed, but no furniture, sleeping accommodations, fishing or cargo

equipment were visible.

6

Although no marihuana was found on board the PECHE, 62 bales were

recovered from the sea in the immediate vicinity of the vessel, for a total weight
of 2,795 pounds. A field test performed on one bale revealed positive for THC,
the active ingredient in marihuana. The videotape shows the bales drifting away
from the boat, and also shows a tarp being thrown from the ship following
exactly the same direction as the bales.

After receiving authorization, the PECHE was seized and its crew arrested for
violation of United States laws. No authorization from the government of
Colombia was requested since the US Coast Guard determined the PECHE to
be stateless. The boat was seized approximately 150 miles north of
Barranquilla, Colombia--an area outside the territory or territorial sea of any
country.

Once the government rested its case, the defense brought a Fed.R.Crim.P. 29
motion for acquittal based on lack of subject matter jurisdiction over the vessel
as well as on insufficiency of the evidence. The motion was denied then and
was denied again when defense renewed it at the close of all the evidence.II.
SUBJECT MATTER JURISDICTION OVER THE PECHE

Appellants argue that the Coast Guard failed to obtain a statement of no

objection from Colombia before boarding the PECHE, and that no
determination of statelessness had been made prior to boarding. They argue that
when someone on board the PECHE responded "PECHE, PECHE,
Barranquilla," he was in fact making a verbal claim of nationality for purposes
of the statute, and, as such, it was necessary for the Coast Guard to verify with
the government of Colombia whether PECHE was duly registered in Colombia.
See United States v. Potes, 880 F.2d 1475 (1st Cir.1989). They argue that their
later refusal to provide information about the vessel's nationality to the
boarding party does not vitiate the first nationality claim.

10

Appellants next argue that the fact that the "PECHE, PECHE, Barranquilla"
statement was made to the MERRIMACK, but not to the officers on the JOHN
HANCOCK who actually boarded the vessel, is a meaningless distinction.
They argue that since the MERRIMACK and the JOHN HANCOCK were
working as a unit, there was no need for the PECHE to identify itself to each
component of that unit in order to not be considered stateless. Finally,
appellants contend that the Coast Guard officer's statement "we would seek
permission from his country to board him" is an implicit recognition that

nationality had been claimed.

11

To decide whether there was sufficient evidence to support a finding that the
PECHE was a vessel without nationality we begin with a look at the applicable
statute, 46 U.S.C.App. Sec. 1903(a):

12is unlawful for any person on board a vessel of the United States, or on board a
It
vessel subject to the jurisdiction of the United States, ... to knowingly or
intentionally manufacture or distribute, or possess with intent to manufacture or
distribute, a controlled substance.
A stateless vessel is defined as:
13 a vessel aboard which the master or person in charge makes a claim of registry,
(A)
which claim is denied by the flag nation whose registry is claimed;
14 any vessel aboard which the master or person in charge fails, upon request of an
(B)
officer of the United States empowered to enforce applicable provisions of United
States law, to make a claim of nationality or registry for that vessel.
15

46 U.S.C.App. Sec. 1903(c)(2).

16

A claim of nationality or registry includes exclusively possession and

production of the vessel's nationality documents; flying its nation's flag; or a
verbal claim of nationality by the master or person in charge of the vessel. 46
U.S.C.App. Sec. 1903(c)(3). Stateless vessels are subject to the jurisdiction of
the United States under 14 U.S.C. Sec. 89, at least for the limited purpose of
determining their true identity. United States v. Rubies, 612 F.2d 397, 403 (9th
Cir.), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1979). Coast
Guard actions are restricted to inquiries, boardings and limited searches
designed to elicit information about the vessel's identification and registration,
since under international law stateless vessels are subject to this type of
examination. United States v. Cortes, 588 F.2d 106, 110 (5th Cir.1979).

17

We agree with the government's contention that the PECHE was stateless, and
therefore subject to United States law. The evidence, when viewed in the light
most favorable to the government, see, e.g., United States v. Molinares-Charris,
822 F.2d 1213, 1218 (1st Cir.1987), was sufficient to sustain the jury's verdict.
We have long held that, in a criminal case, the evidence need not preclude
every reasonable hypothesis inconsistent with guilt. See United States v.
Guerrero Guerrero, 776 F.2d 1071 (1st Cir.1985).

18

In this case, it was reasonable for the jury to look at the evidence presented and
to find that the defendants made no claim of nationality. When the original
radio communications took place on February 11 in the early hours, there was
no identification by the person who responded "PECHE, PECHE,
Barranquilla." There was thus no claim of nationality by "the master or person
in charge." 46 U.S.C.App. Sec. 1903(c)(2)(A), (B). Even if this statement could
be construed as a claim of nationality--a matter on which we take no view-there was no reason to make such a claim at that point, as the person thought
the MERRIMACK was a passing cargo vessel rather than the U.S. Coast
Guard. Later on, an unnamed vessel which turned out to be the PECHE was
sighted by a helicopter throwing bales off the deck. Attempts were made to
obtain the name and nationality of the vessel, but no one identified himself as
the master or person in charge, and the vessel had no name, no flag, or other
identifying characteristics. In fact, the crew denied knowing who the master
was, the name of the vessel and its nationality. Thus, the stage was set, by the
very actions of that crew as well as the surrounding circumstances, for
conclusion by the Coast Guard, and eventually the jury, that the PECHE was in
fact a "stateless vessel" over whom the United States could exercise criminal
jurisdiction pursuant to the Law of Nations and 46 U.S.C.App. Sec. 1903(c)(2)
(A), (B).

19

Appellants' reliance on United States v. Potes, 880 F.2d 1475 (1st Cir.1989), is
unfounded. There, the Coast Guard seized, on the high seas, a vessel with
Honduras painted on the back. The master claimed the vessel to be Honduran
and, after receiving warnings from the Coast Guard, the vessel raised the
Honduran flag. At trial, the United States was unable to prove that Honduras
had denied the claim of the vessel as being one of its own and thus the
jurisdictional evidentiary link was found to be missing. Here, contrary to the
Potes case, the theory has been advanced that the statement "PECHE, PECHE,
Barranquilla," was, in and of itself, a claim of nationality. However, the vessel,
when boarded, never claimed nationality; nor was its name provided; nor did
anyone know who the master was. The mere statement is not enough to comply
with the statute. No visual or verbal claim of nationality was made upon request
of the boarding team, and the occupants denied knowing who the captain was,
the name of the vessel, and its nationality. All this made the vessel one without
nationality since the master failed, upon request of an officer of the United
States, to make a claim of nationality or registry. 46 U.S.C.App. Sec. 1903(c)
(2).

III. SUFFICIENCY OF THE EVIDENCE

20

In reviewing the sufficiency of the evidence, this court must consider whether

the evidence, taken in the light most favorable to the government, together with
all legitimate inferences, can support a guilty verdict from a rational trier of
fact. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979); United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987). It is not
necessary for the government to disprove every reasonable hypothesis of
innocence, provided that the record as a whole supports a conclusion of guilt
beyond a reasonable doubt. United States v. Rivera Rodriguez, 808 F.2d 886,
890 (1st Cir.1986). Credibility is an issue for the jury. United States v. Smith,
680 F.2d 255, 259 (1st Cir.1982) (crewmember's presence on vessel carrying
large quantities of marihuana together with reasonable inferences, supports the
conviction notwithstanding defendant's contention that he was a mere
passenger).
Appellant Herrera argues:
21 statute also requires proof of intent to distribute. The evidence presented was
The
that La Peche was drifting, and that defendants had not [sic] food, water nor fuel to
go anywhere. They had no navigational equipment except a compass which served
no navigational purpose, no charts nor long range communication equipment.
Therefore, even when the jury could have reasonably inferred that they had
possessed the marijuana, they could not have gone anywhere with it. Therefore, they
could not have distribute [sic] it.
22

All these are proper arguments to be made to the jury. Unfortunately, however,
impossibility of success does not negate the intent to distribute and the jury
could so find based on the record in this case.

23

Appellant Cuevas contends that the evidence presented at trial merely places
him on board the PECHE, but does not show that he knowingly associated
himself with the criminal venture. He argues that there was no evidence of his
ownership of the marihuana, that he had prior association with the other crew
members, that he used marihuana, or that he participated in previous drug
operations. According to Cuevas, there was no evidence that would indicate
that he participated in a drug smuggling venture as something he wished to
bring about. He argues that he was only a deck hand, was paid $33.00 for his
efforts and had no means of wealth with which to contribute to the purchase of
the cargo.

24

To sustain a conviction of aiding and abetting the government has the burden of
proving that the appellant participated in the venture and that his participation
was aimed at the venture's success. United States v. Quejada-Zurique, 708 F.2d
857, 859 (1st Cir.1983); see United States v. Beltran, 761 F.2d 1, 6 (1st

Cir.1985). Here, the government has met its burden. The evidence presented at
trial supports the jury's conclusion of guilt.
25

First, Coast Guard officers observed bales being thrown from the ship. Second,
one bale retrieved from the water was dry, indicating that it had not been in the
water very long. The videotape showed bales drifting very close to the vessel.
Third, the vessel was only 30-40 feet long, the four crew members were all
Colombians and they shared responsibilities for operation. This supports the
inference that their relationships were close enough and the boat small enough
for them to know about the criminal venture. United States v. Luciano Pacheco,
794 F.2d 7, 11 (1st Cir.1986); see United States v. Steuben, 850 F.2d 859 (1st
Cir.1988). Fourth, there was a strong odor of marihuana emanating from the
vessel.

26

Rationality supports the jury's finding. The jury could without undue strain
conclude that it was simply incredible that with only four persons on board a
relatively small vessel, on its way to "nowhere," with an open cargo hold,
surrounded by a sea of floating marihuana bales which some of the crew had
been seen dumping, that all four were not participants in this criminal venture.
It is entirely reasonable for the jury to conclude that conspirators, engaged in
conduct which by its nature is kept secret from outsiders, would not allow the
presence of innocent bystanders. United States v. Luciano Pacheco, 794 F.2d 7,
11 (1st Cir.1986). "Neither juries nor judges are required to divorce themselves
of common sense," where, as here, the appellant's portrayal of himself as an
innocent bystander is "inherently unbelievable." United States v. Smith, 680
F.2d 255, 260 (1st Cir.1982).

27

Affirmed.